R. v. Livermore, 1995 CanLII 43 (SCC), [1995] 4 SCR 123

R. v. Livermore, [1995] 4 S.C.R. 123

Her Majesty The Queen Appellant

v.

Carson Livermore Respondent

Indexed as: R. v. Livermore

File No.: 24143.

1995: March 22; 1995: November 16.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Sexual assault ‑‑ Defences ‑‑ Consent ‑‑ Honest but mistaken belief in consent ‑‑ Accused acquitted of sexual assault ‑‑ Whether trial judge erring in reviewing complainant's lack of consent ‑‑ Whether trial judge failing to instruct jury that prior inconsistent statements not adopted by witness do not constitute evidence ‑‑ Whether trial judge mischaracterizing medical evidence ‑‑ Whether trial judge erring in leaving defence of honest but mistaken belief in consent with jury ‑‑ Whether new trial should be ordered.

The accused was charged with sexual assault of the 15‑year‑old complainant V. V and her 14‑year‑old friend T had willingly gone with the accused and another young man, who picked them up in the accused's car at a pizza store at 1:30 a.m. The accused drove to a parking lot behind an apartment building, where the four consumed some beer and talked. They went on to a second parking lot, where the two girls exchanged seats. The accused then drove to a third lot, where he had sexual intercourse with V. After this he drove the two girls to T's home. V testified that she resisted the accused's advances throughout. She stated that she told him "no" during intercourse and tried to push him away. She testified that although the accused was not violent and the windows were open and the doors unlocked, she was afraid to scream or try to escape. A medical examination of V revealed extensive genital bruising consistent with "traumatic" or "very forceful" sexual intercourse. In his defence, the accused maintained that V had consented to the sexual intercourse. He also argued that, in light of V's denial that she had consented, circumstances were such that he had entertained an honest but mistaken belief in consent. The trial judge put this defence to the jury, which acquitted him. The Crown appealed, alleging that the trial judge made four errors: (1) he erred in his review of V's lack of consent and in his treatment of the jury's question on this issue; (2) he failed to instruct the jury that prior inconsistent statements not adopted by the witness do not constitute evidence; (3) he mischaracterized the medical evidence; and (4) he should not have left the defence of honest but mistaken belief with the jury. The Court of Appeal, in a majority decision, upheld the acquittal. All three judges were of the view that the case was one of consent or no consent, and there was no air of reality to a defence of honest but mistaken belief in consent. The majority of the court, however, did not consider the trial judge's errors to be of such significance that the acquittal should be set aside. The dissenting judge would have ordered a new trial.

Held (Major J. dissenting): The appeal should be allowed and a new trial ordered.

Per Lamer C.J. and Cory, McLachlin and Iacobucci JJ.: The cumulative effect of the errors made at trial requires that the appeal be allowed and a new trial ordered, despite the heavy onus on the Crown when it seeks to have an acquittal set aside. V's evidence was clear that she had repeatedly said "no" to the accused and had resisted the assault. There is nothing in the record to indicate that her statements to the police or her testimony at the preliminary hearing were contradictory on this point. The trial judge in his charge to the jury did not mention V's resistance and incorrectly stated that she had not said "no" to the accused. Since the sole issue was consent, this constituted a serious error. The jury were understandably confused by the trial judge's erroneous direction, as indicated by the question they put to him after an hour of deliberation. The judge's response to this question in essence told them they ought to try harder to remember the evidence, and this was an inadequate response. Combined with the other errors, its effect is serious. The second error is that the trial judge failed, as required by law, to instruct the jury that V's prior inconsistent statements were admitted on credibility only and not for the truth of their contents. Some of the trial judge's instructions suggested the prior statements could be relied on as evidence of what had happened. This erroneous direction constitutes a significant error. The third error lay in mischaracterizing the medical evidence. The trial judge suggested that the doctor's testimony that V suffered genital bruising consistent with "very forceful" or "traumatic" intercourse might not be very relevant since the accused admitted that intercourse had taken place. In fact, the evidence of bruising may have been relevant as an indication of lack of consent or resistance. Since consent was the only issue, this misdirection too assumes significance. Finally, the trial judge should not have left the defence of honest but mistaken belief with the jury, since it was unsupported by the evidence. The trial judge in putting this defence to the jury relied on the fact that the girls were out after midnight, that they willingly entered the car of the accused, that they changed seats without trying to escape, that the windows of the car were down and the doors unlocked and that the girls did not scream, as well as on the erroneous conclusion that there was no evidence of verbal complaint. These circumstances did not provide the required air of reality. Since there is no way of knowing whether the jury acquitted because they had a reasonable doubt about whether V consented, or whether they acquitted on the basis of a defence which should not have been left with them, a new trial should be ordered. Absent the significant errors at trial, a reasonable jury properly charged may well have reached a different verdict.

Per Sopinka J.: A new trial should be ordered by reason of the first three errors found by the Court of Appeal, for the reasons given by McLachlin J. The issue of honest but mistaken belief, however, is not before the Court.

Per La Forest and Gonthier JJ.: A new trial should be ordered, for the reasons given by the dissenting judge in the Court of Appeal. The defence of honest but mistaken belief is not before the Court.

Per L'Heureux‑Dubé J.: A new trial should be ordered, for the reasons given by the dissenting judge in the Court of Appeal. The defence of honest but mistaken belief in consent is not before the Court since this is an appeal as of right, the Court of Appeal was unanimous on that issue and no leave to appeal was granted. In any event, as regards that defence, the majority reasons in R. v. Park should be referred to. Major J.'s positions on both issues were strongly disagreed with.

Per Major J. (dissenting): The Crown has failed to satisfy the court to a reasonable certainty that the verdict would not necessarily have been the same had the jury been properly instructed. When the verdict at trial is an acquittal, the Crown appellant does not benefit from the prima facie assumption that an error warrants a new trial. The onus is on the Crown from the outset to establish that the errors complained of materially affected the verdict, such that a new trial is justified. There were clearly errors in the trial judge's charge to the jury. The trial judge incorrectly stated that V's evidence was that she did not come out and say "no" exactly. However, this error did not change the outcome of the trial. Immediately thereafter the trial judge admitted that he might be mistaken and told the jury that it was their recollection of the evidence, not his, which was important. In addition, the jury's question indicates that they understood the complainant's evidence to be that she said no. The trial judge did not err in denying the jury's request to have that evidence replayed. While any request for instruction or assistance from a jury must be treated carefully, in the case where a jury wishes to have evidence read or played again, problems can arise, especially in procedural fairness. Here the jury were not advised that they could not obtain assistance, but were told they should make a further attempt on their own and that if this attempt failed, assistance would be forthcoming. With respect to the alleged improper characterization of the medical evidence, the trial judge said that the jury would have to consider this evidence as an indication of the force which must have been used, and thus did not remove the evidence from their consideration on the issue of consent. The trial judge's failure to inform the jury that prior inconsistent statements which had not been adopted by the witnesses could be used only for assessing credibility was an error. In this case, however, the inconsistent statements were before the jury to test credibility and not for any other purpose. The final error alleged by the Crown is that the trial judge put the defence of honest but mistaken belief in consent to the jury. While the factors listed by the trial judge as supporting the accused's assertion of honest belief in consent do not provide an "air of reality" as required for the defence, this case was one of consent or no consent and credibility was the key issue. Since it is highly unlikely that the jury would have decided the case based on honest but mistaken belief in consent, the verdict would likely have been the same had that defence not been before the jury. The circumstances giving rise to the complaint were decisive. The cramped quarters in which the alleged sexual assault took place were such that some co‑operation of the complainant was necessary. This was consistent with the accused's testimony and inconsistent with that of the complainant. The jury were aware of the circumstances and concluded that the accused proceeded with consent, or at least they had a reasonable doubt about his guilt. This finding of fact represents the collective wisdom of the community as expressed by the jury and should not be interfered with.

Cases Cited

By McLachlin J.

Referred to: Pappajohn v. The Queen, [1980] 2 S.C.R. 120](https://www.minicounsel.ca/scc/1980/13); R. v. Osolin, [1993] 4 S.C.R. 595](https://www.minicounsel.ca/scc/1993/54); R. v. Bulmer, [1987] 1 S.C.R. 782](https://www.minicounsel.ca/scc/1987/56); Sansregret v. The Queen, [1985] 1 S.C.R. 570](https://www.minicounsel.ca/scc/1985/79); R. v. Park, [1995] 2 S.C.R. 836](https://www.minicounsel.ca/scc/1995/104); R. v. Morin, [1988] 2 S.C.R. 345](https://www.minicounsel.ca/scc/1988/8).

By L'Heureux‑Dubé J.

Referred to: R. v. Park, [1995] 2 S.C.R. 836](https://www.minicounsel.ca/scc/1995/104).

By Major J. (dissenting)

R. v. Curlett (1936), 66 C.C.C. 256; R. v. Bourgeois (1937), 69 C.C.C. 120; White v. The King, [1947] S.C.R. 268](https://www.canlii.org/en/ca/scc/doc/1947/1947canlii1/1947canlii1.html); Cullen v. The King, [1949] S.C.R. 658](https://www.canlii.org/en/ca/scc/doc/1949/1949canlii7/1949canlii7.html); R. v. Savoie (1956), 117 C.C.C. 327; R. v. Forgeron (1958), 121 C.C.C. 310; R. v. Paquette (1974), 19 C.C.C. (2d) 154; Vézeau v. The Queen, [1977] 2 S.C.R. 277](https://www.canlii.org/en/ca/scc/doc/1976/1976canlii7/1976canlii7.html); R. v. Morin, [1988] 2 S.C.R. 345](https://www.minicounsel.ca/scc/1988/8); R. v. Evans, [1993] 2 S.C.R. 629](https://www.minicounsel.ca/scc/1993/102); R. v. Naglik, [1993] 3 S.C.R. 122](https://www.minicounsel.ca/scc/1993/64); R. v. Wydryk (1971), 5 C.C.C. (2d) 473; R. v. Ostrowski, [1990] 2 S.C.R. 82](https://www.minicounsel.ca/scc/1990/116); R. v. Park, [1995] 2 S.C.R. 836](https://www.minicounsel.ca/scc/1995/104).

Statutes and Regulations Cited

Criminal Code, R.S.C. 1906, c. 146, s. 1014(2), (3) [rep. & sub. 1923, c. 41, s. 9].

Criminal Code, R.S.C. 1927, c. 36, s. 1013(4), (5) [rep. & sub. 1930, c. 11, s. 28].

Criminal Code, R.S.C. 1970, c. C‑34, s. 613(1)(b)(iii).

Criminal Code, R.S.C., 1985, c. C‑46, ss. 265(4), 675(1)(a), 676(1)(a), 686(1) [am. c. 27 (1st Supp.), s. 145; am. 1991, c. 43, s. 9 (Sch., item 8)], (4) [am. c. 27 (1st Supp.), s. 145], 691(2)(a) [rep. & sub. 1991, c. 43, s. 9 (Sch., item 9)].

Criminal Justice Act 1972 (U.K.), 1972, c. 71, s. 36.

APPEAL from a judgment of the Ontario Court of Appeal (1994), 18 O.R. (3d) 221, 89 C.C.C. (3d) 425, 31 C.R. (4th) 374, 71 O.A.C. 340, affirming the accused's acquittal by Sheppard J. on a charge of sexual assault. Appeal allowed and new trial ordered, Major J. dissenting.

Susan L. Reid, for the appellant.

Lorne Levine, for the respondent.

The judgment of Lamer C.J. and Cory, McLachlin and Iacobucci JJ. was delivered by

Judgment of McLachlin J.

I. McLachlin J. -- Mr. Livermore is charged with sexual assault of a 15-year-old girl, Valerie. At the time of the alleged assault, Livermore was 28 years old. It is common ground that Valerie and her 14-year-old friend Tasha had willingly gone with Livermore and another young man, the co-accused, who picked them up in Livermore's car at an Oshawa pizza store at 1:30 a.m. Livermore drove to a parking lot behind an apartment building where the four consumed some beer and talked. Both Tasha and Valerie testified that Tasha asked to go home after approximately 30 minutes; the accused stated that the four mutually agreed to drive to another location. Livermore drove past Tasha's building to a second parking lot, where the two girls exchanged seats. Livermore then drove to a third parking lot where he had sexual intercourse with Valerie. After this he drove the two girls to Tasha's home.

II. Valerie testified that she resisted Mr. Livermore's advances throughout. She stated that although she told the accused to stop kissing her and pushed him away, he climbed over the gear shift, pulled her pants down and had sexual intercourse with her. She stated that she told him "no" during intercourse and tried to push him away. She testified that although the accused was not violent and the windows were open and the doors unlocked, she was afraid to scream or try to escape because in the movies "people that don't say nothing, don't do nothing, just get away". Valerie stated that when they arrived at Tasha's apartment, Livermore hugged her. Valerie said that it was possible that she had hugged him back, before saying "bye". When asked by counsel for the accused why, on returning to Tasha's apartment building, she didn't run into the apartment with Tasha to escape, she stated that she didn't because she didn't want the men "to know that anything was wrong".

III. The girls testified that on their return to Tasha's home they locked themselves in the bathroom and concocted a story to explain their absence to Tasha's mother. They told Tasha's mother a story that involved the presence of a third girl at the pizza store, whose threatening manner had prompted them to go with Livermore and the co-accused for safety. They also told her that Valerie had been raped. Valerie related the same story in her first statement to the police later that morning. She testified that the only part of the story that was untrue was the explanation of how the girls came to get into the car with Livermore and the co-accused. Valerie says she told her own mother the truth "from the start", at the hospital later in the morning, and subsequently told the police the truth in a second statement. A medical examination of Valerie revealed extensive genital bruising consistent with "traumatic" or "very forceful" sexual intercourse.

IV. Livermore's testimony contradicted Valerie's on the issue of consent. He testified that Valerie had been a willing partner while they mutually kissed and touched each other and that he climbed over the gear shift onto her side of the car after she touched his leg and penis. He stated that Valerie lowered her own pants and underpants prior to intercourse. Livermore testified that on the way back to Tasha's apartment, Tasha and Valerie discussed how they would explain their absence to Tasha's mother. He stated that Valerie hugged him before she left the car. Livermore also testified that he gave a slip of paper to Tasha on which he had written his name and telephone number before she and Valerie switched places in the car.

V. In his defence, Livermore maintained that Valerie had consented to the sexual intercourse. He also argued that, in light of Valerie's denial that she had consented, circumstances were such that he had entertained an honest but mistaken belief in consent. The trial judge put this defence to the jury, which acquitted him and his co-accused. The Ontario Court of Appeal dismissed the appeal: (1994), 18 O.R. (3d) 221. Abella J.A., dissenting, would have ordered a new trial.

VI. Both in the Court of Appeal and in this Court, the Crown alleged that the trial judge made the following four errors:

(1)The trial judge erred in his review of Valerie's lack of consent and in his treatment of the jury's question on this issue;

(2)The trial judge failed to instruct the jury that prior inconsistent statements not adopted by the witness do not constitute evidence;

(3)The trial judge mischaracterized the medical evidence; and

(4)The defence of honest but mistaken belief should not have been left with the jury.

VII. In my view, the cumulative effect of the errors made at trial requires that the appeal be allowed and a new trial ordered, despite the heavy onus on the Crown when it seeks to have an acquittal set aside.

VIII. With respect to the first alleged error, Valerie's evidence was clear that she had repeatedly said "no" to Livermore and had resisted the assault. There is nothing in the record to indicate that her statements to the police or her testimony at the preliminary hearing were contradictory on this point. The contradiction with respect to her saying "no" to the co-accused when he tried to kiss her does not negate the consistency of her testimony with respect to Livermore. The trial judge in his charge to the jury did not mention Valerie's resistance and incorrectly stated that she had not said "no" to Livermore. Since the sole issue was consent, this constituted a serious error.

IX. The jury was understandably confused by the trial judge's erroneous direction, as indicated by the question it put to the judge after an hour of deliberation:

The jury would like to hear evidence repeated with respect to the witness Valerie ... answering to both the Crown and the defence questioning about when Valerie said, no, to Carson Livermore. Further, can we also hear Valerie's comments of, no, during the preliminary hearing? [Emphasis added.]

The judge's response to this question was accurately described by the dissenting judge in the Court of Appeal as, in essence, telling them they ought to try harder to remember the evidence. This was an inadequate response to the jury's question, which indicated difficulty on the main issue in the case -- consent. Combined with the other errors, its effect is serious.

X. The second error is that the trial judge failed, as required by law, to instruct the jury that Valerie's prior inconsistent statements were admitted on credibility only and not for the truth of their contents. Some of the trial judge's instructions suggested the prior statements could be relied on as evidence of what had happened. Had Valerie adopted the prior statements in her evidence at trial, no problem would have arisen. However, she did not adopt, but expressly rejected, a number of them. Some of the prior statements, if accepted for the truth of their contents, might have led the jury to a verdict which was not based on the evidence. In particular, Valerie's prior statements, denied at trial, that her pants were tight and that it was she who gave the respondent a hug outside the car, if believed, might have been used by the jury to draw the critical conclusion that Valerie consented. The majority of the Court of Appeal, while finding error on this point, suggested that it was less serious than it might have been since "the witnesses' prior inconsistent statements were used mainly to attack their credibility" (p. 231). With respect, this conclusion is no answer to the fact that the jury might well have concluded from the trial judge's direction that it could use the prior statements as proving the truth of their contents. This erroneous direction constitutes a significant error.

XI. The third error lay in mischaracterizing the medical evidence. Dr. Flock testified that Valerie suffered genital bruising consistent with "very forceful" or "traumatic" intercourse. The trial judge suggested to the jury that this evidence might not be very relevant since Livermore admitted that intercourse had taken place. The trial judge said:

As far as the medical evidence of Dr. Flock is concerned, this evidence would be relevant, particularly relevant, if there was a denial that any sexual intercourse or attempted sexual intercourse took place but there is no denial of that. It is admitted. But, the Crown would ask you to consider this evidence as an indication of the force which must have been used to have caused the bruising which the doctor described. Again, this is a fact which you will have to consider. [Emphasis added.]

I agree with the dissenting judge in the Court of Appeal that this passage might be taken as suggesting that the evidence of bruising was of little or no relevance, given the admission of intercourse. In fact, it may have been relevant as an indication of lack of consent or resistance. Since consent was the only issue, this misdirection too assumes significance.

XII. It remains to consider the allegation that the trial judge should not have left the defence of honest but mistaken belief with the jury. The Court of Appeal was unanimous in concluding that it should not have, since the defence was unsupported by the evidence. I agree with that assessment.

XIII. Livermore testified that he believed Valerie was consenting to intercourse. The only question is whether there was sufficient foundation in the facts to lend an air of reality to the defence of mistaken but honest belief in consent. There was evidence that Valerie had said no; there was no evidence that she had said yes. The trial judge in putting this defence to the jury relied on the fact that the girls were out after midnight, that they willingly entered the car of the accused, that they changed seats without trying to escape, that the windows of the car were down and the doors unlocked, that the girls did not scream and the erroneous conclusion, discussed earlier in these reasons, that there was no evidence of verbal complaint. Abella J.A. was of the view that these circumstances did not provide the required air of reality to the defence of honest but mistaken belief in consent (at p. 226):

Not screaming, drinking beer while under age, being out at 1:00 a.m., parking, cavalierly trusting a stranger, switching places in a car after a casual physical encounter, and staying too long in a car someone else has control over, are neither individually nor collectively any basis at all, let alone realistic ones, for assuming that someone is agreeing to sexual intercourse. In my view, there were no reasonable grounds for the accused's beliefs found in the package of factors listed by the trial judge.

XIV. Galligan J.A., for the majority, suggested that "this case was one of consent or no consent and there was no air of reality to a defence of honest but mistaken belief in consent" (p. 232).

XV. The common law has long recognized that defences for which there is no factual basis or evidentiary foundation should not be put to the jury. In Pappajohn v. The Queen, [1980] 2 S.C.R. 120](https://www.minicounsel.ca/scc/1980/13), this Court articulated the minimum threshold for mistake of fact defences, including an accused person's honest but mistaken belief in consent, as requiring an air of reality to be raised on the evidence and circumstances to support the defence. In R. v. Osolin, [1993] 4 S.C.R. 595](https://www.minicounsel.ca/scc/1993/54), Cory J. noted that the air of reality test as it relates to honest but mistaken belief in consent in all assault offences has been codified by the requirement in s. 265(4) of the Criminal Code, R.S.C., 1985, c. C-46, that there be "sufficient evidence" in order for the judge to put the defence of mistake to the jury.

XVI. In Pappajohn, McIntyre J. described the air of reality threshold as follows: "to convey such a sense of reality, there must be some evidence which, if believed, would support the existence of a mistaken but honest belief that the complainant was in fact consenting to the acts of intercourse which admittedly occurred" (p. 128). He observed (at p. 133):

To require the putting of the alternative defence of mistaken belief in consent, there must be, in my opinion, some evidence beyond the mere assertion of belief in consent by counsel for the appellant. This evidence must appear from or be supported by sources other than the appellant in order to give it any air of reality.

He later clarified this statement in R. v. Bulmer, [1987] 1 S.C.R. 782](https://www.minicounsel.ca/scc/1987/56), at p. 790:

These words appear, on occasion, to have been misunderstood, but I do not withdraw them. There will not be an air of reality about a mere statement that "I thought she was consenting" not supported to some degree by other evidence or circumstances arising in the case.... The question [the trial judge] must answer is this. In all the circumstances of this case, is there any reality in the defence?

XVII. McIntyre J. in Pappajohn was alive to the fact that, absent a requirement that the evidence lend an air of reality to the defence of mistake of fact, the defence could be put forward by the accused in every case of sexual assault merely by the accused's assertion that he believed the complainant consented, to the confusion of the jury and at the risk of a false verdict. Evidence lending an air of reality to the defence may come from the accused or from other sources: Osolin, supra, at pp. 686-87 per Cory J. and at p. 649 per McLachlin J. Nevertheless, the threshold of "sufficient evidence" -- the air of reality test -- must be maintained if we are to ensure that the defence is one which is not spurious, but founded on the evidence.

XVIII. The defence of mistake of fact in the context of sexual assault involves two elements: (1) that the accused honestly believed the complainant consented; and (2) that the accused have been mistaken in this belief. In order for the defence to be put to the jury, there must be evidence lending an air of reality to both of these elements. Typically, the second element is established through the assertion by the accused or counsel for the accused that he believed the complainant consented although her evidence is to the contrary. It is in relation to the first element -- honest belief -- that difficulties arise in establishing an air of reality. In order for the belief to be honestly held, the accused cannot have been wilfully blind about whether consent was given: Sansregret v. The Queen, [1985] 1 S.C.R. 570](https://www.minicounsel.ca/scc/1985/79). Furthermore, since recklessness about whether there was consent constitutes one aspect of the mens rea of sexual assault (Pappajohn, supra, at p. 146), the accused cannot have been reckless in his belief that there was consent. While the belief need not be reasonable, there must be something in the evidence of the circumstances surrounding the alleged assault which lends an air of reality to an honest belief in consent.

XIX. In the case at bar, the accused testified that he believed Valerie consented, contrary to her evidence that she resisted intercourse throughout. The element of mistake is made out. There is no evidence, however, which lends an air of reality to the assertion by the accused that he had an honest belief in Valerie's consent to intercourse. The evidence of Livermore was that Valerie clearly consented. The evidence of Valerie was that, far from consenting, she resisted and repeatedly said "no". Tasha's testimony corroborated Valerie's testimony in this regard. The question to be answered is whether there was evidence adduced which would nonetheless lend an air of reality to the creation in the accused's mind of an honest belief that Valerie was consenting notwithstanding the fact that their testimony on the central issue of consent was so diametrically opposed. In other words, was there a realistic evidentiary basis, upon which the jury could conclude that what really happened was a third version, that is, lack of consent but honest mistake by Livermore that it had been given. In my view, there was none.

XX. The accused's bare assertion that he "believed" that the complainant consented must be supported by something in the circumstances that suggests that he may honestly have held such a belief: Pappajohn, supra. Otherwise, the goal of screening out the spurious defence based on nothing but the accused's facile assertion of belief will be thwarted. Examples of such circumstances are well documented in the jurisprudence. For example, sexually aggressive conduct by the complainant, a previous relationship of intimacy coupled with no reason to suspect a change of heart, and the case of the known prostitute are frequently cited as examples of situations in which an honest mistake may be made as to consent. Similarly, as noted in R. v. Park, [1995] 2 S.C.R. 836](https://www.minicounsel.ca/scc/1995/104), independent evidence, particularly real evidence, may lend an air of reality to the defence: at pp. 851-52 per L'Heureux-Dubé J. If there is no evidence permitting an inference that the accused honestly believed in consent, then the accused in assuming consent must be taken to have closed his eyes to whether there was real consent, i.e., he must have been wilfully blind or reckless as to whether there was consent. In such a case, the required air of reality on the element of the honesty of the accused's belief will be lacking.

XXI. I agree with Abella J.A. that evidence of being out late, drinking beer and switching seats in a car is incapable of providing a foundation for an honest belief in consent to sexual intercourse. Such conduct, being equally consistent with non-consent as with consent, lacks any probative value on the issue. A man who assumes that equivocal acts such as these amount to consent to intercourse is assuming consent not on the basis of the circumstances, but as a result of recklessness or wilful blindness. The fact that the girls had an opportunity to leave the car before there was any indication that the accused had sexual intercourse in mind does not give rise to an inference of consent. The fact that Valerie did not scream although the car windows were open does not lend an air of reality to the defence: the two men were twice Valerie's age. The fact that the accused hugged Valerie when she left the car (whether initiated by her or not), the fact that he gave Tasha a slip of paper with his name and phone number on it, the fact that Valerie and Tasha did not flee when finally they returned to Tasha's apartment, are relevant to Valerie's credibility as a witness. However, even if believed, they are insufficient to lend an air of reality to an honest belief in consent.

XXII. To put it in the language of Galligan J.A., for the majority, the case was one of consent or no consent. There was nothing in the evidence which supported a third version that Valerie had not consented but that Livermore honestly believed that she had. We are therefore left with his bare assertion of belief. On the jurisprudence of this Court, this is insufficient to lend an air of reality to the defence of honest but mistaken belief. I conclude that the trial judge erred in putting the defence of honest but mistaken belief to the jury.

XXIII. It remains to consider whether a new trial should be ordered notwithstanding the acquittal at trial. The test for setting aside an acquittal and directing a new trial was set out by Sopinka J. in R. v. Morin, [1988] 2 S.C.R. 345](https://www.minicounsel.ca/scc/1988/8), at p. 374:

An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it.

XXIV. In this case, we have no way of knowing whether the jury acquitted because it had a reasonable doubt about whether Valerie consented, or whether it acquitted on the basis of a defence which should not have been left with it. The cumulative effect of the numerous errors in this case is such that the Morin test is made out. Absent the significant errors at trial, a reasonable jury properly charged may well have reached a different verdict. I would allow the appeal, set aside the acquittal and direct a new trial.

The reasons of La Forest and Gonthier JJ. were delivered by

Reasons of La Forest J.

XXV. La Forest J. -- I agree with the reasons of Abella J.A., the dissenting judge in the Court of Appeal ((1994), 18 O.R. (3d) 221), and would on that basis allow the appeal and order a new trial. The defence of honest but mistaken belief did not form part of the dissent, and this appeal being as of right, that issue is not before us.

The following are the reasons delivered by

Reasons of L'Heureux-Dubé J.

XXVI. L'Heureux-Dubé J. -- For the reasons of Abella J.A., dissenting in the Court of Appeal ((1994), 18 O.R. (3d) 221), I would allow the appeal and order a new trial.

XXVII. As regards the defence of honest but mistaken belief, that issue is not before us since it was unanimously held by the Court of Appeal that "this case was one of consent or no consent and there was no air of reality to a defence of honest but mistaken belief in consent" (p. 232). This appeal is an appeal as of right based on the dissent of Abella J.A. in the Court of Appeal on the sole questions raised in that dissent, no leave to appeal having been granted on that issue.

XXVIII. In any event, with respect to that defence, I refer to my reasons for the majority of the Court in R. v. Park, [1995] 2 S.C.R. 836](https://www.minicounsel.ca/scc/1995/104).

XXIX. Finally, I cannot but express my strong disagreement with my colleague Justice Major's positions on both issues considered, namely the Crown's right of appeal as a matter of law, a point not discussed before us, and on the facts of this case as well as his analysis of the alleged errors committed by the trial judge.

The following are the reasons delivered by

Reasons of Sopinka J.

XXX. Sopinka J. -- I agree with Justice McLachlin for the reasons that she gives that a new trial should be ordered by reason of the first three errors found by the Court of Appeal ((1994), 18 O.R. (3d) 221). However, I agree with Justice L'Heureux-Dubé that the issue of honest but mistaken belief is not before us.

The following are the reasons delivered by

Dissenting Reasons of Major J.

Major J. (dissenting) --

Introduction

I. Introduction

XXXI. The appellant is appealing an acquittal following a trial by judge and jury. In order to succeed the appellant must satisfy the court to a reasonable certainty that the verdict would not necessarily have been the same had the jury been properly instructed. In my opinion the appellant has failed to do so.

Statutory Provisions

II. Statutory Provisions

XXXII. Section 686(4) of the Criminal Code, R.S.C., 1985, c. C-46, sets out the Crown's right of appeal from a verdict of acquittal:

686. ...

(4) Where an appeal is from an acquittal, the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) order a new trial, or

(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

XXXIII. This provision is different from the rights of an accused person appealing a conviction. Section 686(1) sets out the powers of the Court of Appeal on appeals from conviction:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

(b) may dismiss the appeal where

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;

XXXIV. Where an accused appeals from a conviction at trial, the onus is on him or her to establish that errors were made on the grounds laid out in s. 686(1)(a)(i), (ii) or (iii). Once the accused has discharged this burden, the Court of Appeal must allow the appeal unless the Crown can satisfy it, pursuant to s. 686(1)(b)(iii), that notwithstanding those errors there was no substantial wrong or miscarriage of justice.

XXXV. However, when the verdict at trial is an acquittal, the Crown appellant, unlike an accused, does not benefit from the prima facie assumption that an error warrants a new trial. The onus is on the Crown from the outset to establish that the errors complained of materially affected the verdict, such that a new trial is justified.

Historical Overview

III. Historical Overview

XXXVI. At common law, there was no appeal from a verdict of acquittal. It remains the case in England that the Crown has no right of appeal from an acquittal, although the Attorney General has the right to refer any point of law that arose in the case to the Court of Appeal for their opinion: Criminal Justice Act 1972 (U.K.), 1972, c. 71, s. 36. The reference does not affect the acquittal.

XXXVII. It was not until 1923 that the Criminal Code of Canada provided for appeals in criminal cases: S.C. 1923, c. 41, s. 9. At that time, only convictions could be appealed. Section 1014(3) of the Criminal Code, R.S.C. 1906, c. 146, provided that the Court of Appeal could allow the appeal and either quash the conviction and enter a verdict of acquittal, or order a new trial. Section 1014(2) of the Criminal Code provided that the court could dismiss the appeal, notwithstanding any errors at trial, if no substantial wrong or miscarriage of justice had occurred.

XXXVIII. It was not until 1930 that the Attorney General was provided with a right of appeal from acquittal by virtue of s. 1013(4) and (5) of the Criminal Code, R.S.C. 1927, c. 36, amended S.C. 1930, c. 11, s. 28, which provided:

1013. ...

(4) Notwithstanding anything in this Act contained, the Attorney General shall have the right to appeal to the court of appeal against any judgment or verdict of acquittal of a trial court in respect of an indictable offence on any ground of appeal which involves a question of law alone.

(5) The procedure upon such an appeal and the powers of the court of appeal, including the power to grant a new trial, shall mutatis mutandis and so far as the same are applicable to appeals upon a question of law alone, be similar to the procedure prescribed and the powers given by sections one thousand and twelve to one thousand and twenty-one of this Act, inclusive, and the Rules of Court passed pursuant thereto, and to section five hundred and seventy-six of this Act.

XXXIX. The Attorney General was thereby granted the same rights of appeal as an accused. Appellate courts, however, held that the Crown was not entitled to the prima facie assumption that an error at trial warrants allowing the appeal unless there had been no miscarriage of justice: R. v. Curlett (1936), 66 C.C.C. 256 (Alta. C.A.), R. v. Bourgeois (1937), 69 C.C.C. 120 (Sask. C.A.).

XL. In White v. The King, [1947] S.C.R. 268](https://www.canlii.org/en/ca/scc/doc/1947/1947canlii1/1947canlii1.html), and Cullen v. The King, [1949] S.C.R. 658](https://www.canlii.org/en/ca/scc/doc/1949/1949canlii7/1949canlii7.html), the Supreme Court of Canada concluded that the Crown could invoke the curative provision of s. 1014(2) in the same way as an accused appealing a conviction. In White the Court stated the test for an appeal by the Crown, at p. 276:

...the proper rule to be followed by the Court of Appeal was that the onus was on the Crown to satisfy the Court that the verdict would not necessarily have been the same if the magistrate had properly directed himself.

XLI. The 1954 revision of the Criminal Code set out the current provisions regarding appeals from acquittal by the Attorney General. The explicit reference that the Crown would have the same rights as the accused on an appeal, mutatis mutandis, was removed. In subsequent cases appellate courts generally maintained that it was the Crown's onus to establish that, not only had error or misdirection occurred, but the verdict was affected: R. v. Savoie (1956), 117 C.C.C. 327 (N.B.C.A.); R. v. Forgeron (1958), 121 C.C.C. 310 (N.S.S.C.); R. v. Paquette (1974), 19 C.C.C. (2d) 154 (Ont. C.A.).

XLII. The Supreme Court of Canada confirmed this view in Vézeau v. The Queen, [1977] 2 S.C.R. 277](https://www.canlii.org/en/ca/scc/doc/1976/1976canlii7/1976canlii7.html). Martland J. held that the sections of the Code dealing with appeals by the Crown did not contain any provision equivalent to s. 613(1)(b)(iii) (now s. 686(1)(b)(iii)). Martland J. observed that the provisions of the Criminal Code had changed since White and Cullen, but concluded that the onus on the Crown remained the same (at p. 292):

In the present case, therefore, it was the duty of the Crown, in order to obtain a new trial, to satisfy the Court that the verdict would not necessarily have been the same if the trial judge had properly directed the jury.

XLIII. In more recent years, this Court has emphasized that the onus on the Crown is a heavy one. In R. v. Morin, [1988] 2 S.C.R. 345](https://www.minicounsel.ca/scc/1988/8), Sopinka J. stated (at p. 374):

The onus resting on the Crown when it appeals an acquittal was settled in Vézeau v. The Queen, [1977] 2 S.C.R. 277](https://www.canlii.org/en/ca/scc/doc/1976/1976canlii7/1976canlii7.html). It is the duty of the Crown to satisfy the court that the verdict would not necessarily have been the same if the jury had been properly instructed.

I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty. An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent test would require an appellate court to predict with certainty what happened in the jury room. That it cannot do. [Emphasis added.]

XLIV. In R. v. Evans, [1993] 2 S.C.R. 629](https://www.minicounsel.ca/scc/1993/102), the Court reiterated that the onus on the Crown is a heavy one, and the Crown must satisfy the court "with a reasonable degree of certainty" (p. 645) that the verdict would not necessarily have been the same had the error not occurred. Cory J. noted Canada's generally liberal approach to Crown appeals in contrast to other jurisdictions (at pp. 645-46):

In setting the standard for reversal, it is worth observing that, among the major English-speaking common-law jurisdictions, Canada appears to possess the most liberal provisions for Crown appeals. In some jurisdictions, particularly in the United States, the prosecution is limited to interlocutory appeals from unfavourable rulings made before a verdict is reached. Other jurisdictions permit prosecution appeals in limited circumstances such as where the information is quashed; where the trial is held to be a nullity or where a directed verdict of acquittal is entered....

Among appellate courts there has always been a great deal of healthy respect for and deference to a jury verdict of acquittal. This deferential approach is appropriate and correct. The special significance of a verdict of acquittal by a jury has also been recognized by this Court in R. v. Kirkness, [1990] 3 S.C.R. 74](https://www.minicounsel.ca/scc/1990/57). There on behalf of the majority it was said at p. 83:

The verdict of the jury constitutes, in a very real way, the verdict of the community. Trial by jury in criminal cases is a process that functions exceedingly well and constitutes a fundamentally important aspect of our democratic society. It is not members of the judiciary, but rather the members of the jury, sitting as members of the community, who make the decision as to guilt or innocence which is so vitally important both to the individual accused and the community.

It follows that only if there was a significant error made by the trial judge in the course of the charge should the jury's verdict of acquittal be set aside. [Emphasis added by Cory J.]

XLV. The onus on the Crown to overturn an acquittal as stated is a heavy or substantial one. The Crown must demonstrate, with a reasonable degree of certainty, that the verdict would not necessarily have been the same had the jury been properly instructed. Unlike an accused person appealing a conviction, the Crown does not benefit from the prima facie assumption that any error warrants a new trial.

Analysis

IV. Analysis

XLVI. It has been common ground throughout this appeal that there were errors in the trial judge's charge to the jury. The appellant described the following:

1. Incorrectly summarizing the evidence of the complainant Valerie regarding her statements to the accused.

2. Failing to properly address the jury's request to rehear the above-mentioned evidence.

3. Improperly characterizing medical evidence as lacking relevance.

4. Failing to instruct the jury on the limited use of prior inconsistent statements at trial.

5. Putting the defence of honest but mistaken belief in consent to the jury.

It is necessary to consider each of these.

Incorrect Summary of Evidence

A. Incorrect Summary of Evidence

XLVII. The trial judge incorrectly stated that Valerie's evidence was that she did not come out and say "no" exactly. However, this error did not have the effect of changing the outcome of the trial. Immediately after stating that he did not believe the complainant to have testified that she said "no", the trial judge admitted that he might be mistaken about that. The trial judge told the jury that it was their recollection of the evidence, and not his, which was important. The trial judge quoted counsel for the Crown as using the phrase "no means no" during her address to the jury.

XLVIII. In addition, the question of the jury regarding the evidence indicates that the jury understood the complainant's evidence to be that she said no. The question was:

The jury would like to hear evidence repeated with respect to the witness Valerie...answering to both the Crown and the defence questioning about when Valerie said, no, to Carson Livermore. Further, can we also hear Valerie's comments of, no, during the preliminary hearing?

It appears that the jury understood Valerie to have said "no" notwithstanding the incorrect summary by the trial judge, and wanted to hear the evidence again. They were not misled by the judge's error in the inaccurate summary of the evidence on that point.

Failure to Replay Evidence for the Jury

B. Failure to Replay Evidence for the Jury

XLIX. The appellant has argued that the trial judge erred in denying the jury's request to have the complainant's evidence replayed, and that this error, combined with the trial judge's mistake in summarizing the same evidence, would have made another outcome reasonably certain. The appellant submits that the trial judge did not give the jury a "full, careful and correct response" as required by R. v. Naglik, [1993] 3 S.C.R. 122](https://www.minicounsel.ca/scc/1993/64), at p. 139, although that case is of doubtful value to this appeal, as there the problem was confusion over the trial judge's instructions. In this case we are dealing with a request to rehear the complainant's evidence.

L. Any request for instruction or assistance from a jury must be treated carefully. However, in the case where a jury wishes to have evidence read or played again, problems can arise, especially in procedural fairness. In R. v. Wydryk (1971), 5 C.C.C. (2d) 473, it was noted that "when some particular area of a witness' evidence is read at a jury's request, it is incumbent upon the trial Judge to see that all the evidence pertaining to that area is included--else an unfair and biased result might appear" (p. 480). This was the problem faced by the trial judge.

LI. R. v. Ostrowski, [1990] 2 S.C.R. 82](https://www.minicounsel.ca/scc/1990/116), is notable on this point. In that case a jury requested transcripts, particularly those of seven witnesses. The trial judge asked the jury to attempt to use their collective recollection to solve the problem and to return if they needed further assistance. The jury did not make such a request, but returned with a verdict. Cory J. held that no error had been committed by the trial judge, as he had not closed the door on the request (at p. 83). Similarly, the door was not closed in the instant case. The jury was not advised that they could not obtain assistance, but that they should make a further attempt on their own and that if this attempt failed, assistance would be forthcoming.

LII. I am not convinced that the trial judge erred in his handling of the request. He advised the jury of several problems involving their request, including practical problems with finding the evidence in question, and fairness concerns which would have necessitated replaying the respondent's evidence as well. He then asked the jury to attempt to use their collective recollection of the evidence to either satisfy themselves of the answer or at least narrow the question. He told the jury that if they were unsuccessful in this the court would do its best to accommodate them. In my opinion he did not discourage the jury from returning with a new request; rather, he indicated a willingness to accommodate the jury if they would first make a further attempt to solve the problem without replaying the evidence. The jury seems to have been satisfied and returned with a verdict within 40 minutes.

Incorrect Characterization of Medical Evidence

C. Incorrect Characterization of Medical Evidence

LIII. The third error alleged by the appellant is that the trial judge improperly characterized the medical evidence in the case. The trial judge stated that the medical evidence would be particularly relevant if the accused had denied that intercourse took place, which he had not. The appellant submits that this implied that the evidence had no other particular relevance, when in fact it had relevance on the issue of consent. This would have been true had the trial judge said nothing else. However, the trial judge also said,

But, the Crown would ask you to consider this evidence as an indication of the force which must have been used to have caused the bruising which the doctor described. Again, this is a fact which you will have to consider. [Emphasis added.]

I agree with Galligan J.A. that the judge did not remove the evidence from the jury's consideration on the issue of consent.

Failure to Instruct the Jury on Prior Inconsistent Statements

D. Failure to Instruct the Jury on Prior Inconsistent Statements

LIV. The failure of the trial judge to inform the jury that prior inconsistent statements which had not been adopted by the witnesses could be used only for assessing credibility was an error. However, in the context of this case the error was not serious. The following inconsistent statements were put to the complainant Valerie:

(a) that she gave the respondent a hug

(b) that the respondent and the co-accused Miller forced her to drink

(c) that Miller told the respondent to get off her

(d) that her pants were tight.

The following prior inconsistencies were put to Tasha:

(a) an absence of prior reference to Valerie's hands being pinned

(b) her statement that she hit the respondent's shoulder while he was

assaulting the complainant

(c) an absence of reference to nudging Miller with her elbow

(d) that she did nothing while Miller touched her breast

(e) that she never told Miller to stop

(f) that Miller might only have been holding the car door open when they changed seats

(g) her description of where Miller put his hands

(h) that she had agreed to meet the two men the next night.

LV. It is clear from the questions asked by counsel for the respondent and the charge to the jury that the prior inconsistent statements were in fact used mainly to attack the credibility of the witnesses in question. The trial judge said:

Essentially the position of Mr. Levine on behalf of Mr. Livermore is that the evidence of Valerie...ought not to be accepted because of the material inconsistencies.

LVI. It is apparent that when the trial judge refers to the prior statements of Tasha and Valerie as constituting "if nothing else the foundation for an honest but mistaken belief in consent" he is referring to the position taken by Mr. Galluzzo, counsel for the co-accused, Miller, who was acquitted. This is not an instruction but a statement of the defence position of the co-accused. In fact, the prior inconsistent statements mainly refer to charges against Miller and would have had little bearing on the findings of fact by the jury regarding the respondent.

LVII. In addition, the inconsistent statements did not deal with the main issue of this trial, which was consent. If the jury had used the statements for the truth of their contents, the evidence regarding consent would have remained relatively untouched. The appellant submitted that Valerie's statement about giving the respondent a hug and Tasha's statement about getting the respondent's phone number are both related to the issue of consent. In my opinion the relationship of these two statements to the issue of consent is tenuous.

LVIII. While failure to instruct a jury on the limited use of prior inconsistent statements is an error, and one which is sometimes fatal, in this case the inconsistent statements were before the jury to test credibility and not for any other purpose, such as the truth of their contents.

Placement of the Defence of Honest but Mistaken Belief Before the Jury

E.Placement of the Defence of Honest but Mistaken Belief Before the Jury

LIX. The final error alleged by the appellant is that the trial judge put the defence of honest but mistaken belief in consent to the jury. I agree with the majority in the Court of Appeal that the factors listed by the trial judge as supporting the respondent's assertion of honest belief in consent do not provide an "air of reality" as required for the defence by R. v. Park, [1995] 2 S.C.R. 836](https://www.minicounsel.ca/scc/1995/104). Placement of a defence which is unavailable to an accused before a jury can be a serious error, as the jury may decide the case based on the incorrect defence.

LX. Notwithstanding the potential for serious error when an incorrect defence is placed before the jury, I agree with the characterization of the case by Galligan J.A. in the Court of Appeal as one of consent or no consent and that credibility was the key issue. The questions from the defence to the complainant, the accused, and witnesses clearly point to a defence of consent. In my opinion it is highly unlikely that the jury would have decided this case based on honest but mistaken belief in consent. Because of this, had the defence of honest but mistaken belief in consent not been before the jury the verdict would likely have been the same.

Conclusion

V. Conclusion

LXI. The circumstances giving rise to the complaint were decisive in this case. The alleged sexual assault took place in the bucket seat of a sports car. The cramped quarters were such that on the facts of this case some co-operation, if not the consent, of the complainant was necessary for the alleged offence to have occurred. This was consistent with the accused's testimony and inconsistent with that of the complainant. The jury was aware of the circumstances of the alleged offence and concluded that the accused proceeded with consent, or at least they had a reasonable doubt about his guilt. This finding of fact represents the collective wisdom of the community as expressed by the jury and should not be interfered with. The errors of the trial judge such as they were would not have changed the result.

LXII. The important differences in the status of an accused person and the Crown have been given constitutional strength by the guarantees of individual rights set out in the Canadian Charter of Rights and Freedoms. In addition to the heavier onus on the Crown to successfully appeal from an acquittal the Crown can only appeal on a question of law (s. 676(1)(a)) while the accused may appeal on both questions of law alone and, with leave of the court, on questions of fact or of mixed law and fact (s. 675(1)(a)). In addition an accused may appeal to this Court as of right when an acquittal has been overturned by a Court of Appeal (s. 691(2)(a)).

LXIII. Applying these principles to the facts of this case, I am not persuaded that the Crown has met the heavier onus required by law. The question of consent or its lack was pivotal in this case. The errors of the trial judge as identified were, for the reasons previously stated, not serious enough in these circumstances that the jury, had the errors not been made, is likely to have reached a different result.

LXIV. The appellant has not demonstrated to a reasonable certainty that the jury would have not necessarily had a reasonable doubt about the guilt of the accused. For the reasons stated it is my opinion that not only is it uncertain that a different result would have occurred but for the errors, but that it is unlikely that this would have occurred.

LXV. In the result, I would dismiss the appeal and confirm the order of the Court of Appeal in upholding the acquittal of the respondent.

Appeal allowed and new trial ordered, Major J. dissenting.

Solicitor for the appellant: The Ministry of the Attorney General, Toronto.

Solicitor for the respondent: Lorne Levine, Toronto.